119 AD3d 408
N.Y. App. Div. 1st
2014

Delores Covington, Appellant, v City of New York et al., Respondents.

Appellate Division, First Department

July 3, 2014

2014 NY Slip Op 05026 [119 AD3d 408]

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 27, 2014

Raymond Schwartzberg & Associates, PLLC, New York (Raymond B. Schwartzberg of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Randy E. Kleinman of counsel), for municipal respondent.

Carroll McNulty & Kull LLC, New York (Frank J. Wenick of counsel), for Bronx Lebanon Hospital Center, respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 13, 2012, which granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants each demonstrated entitlement to judgment as a matter of law in this action where plaintiff allegedly tripped and fell on a sidewalk defect. Defendant City submitted evidence showing that it had no written notice of the alleged defect (see Administrative Code of City of NY § 7-201 [c]; Castro v City of New York, 101 AD3d 573 [1st Dept 2012]), and defendant hospital demonstrated that it was a lessee, and not the owner of the premises in front of which plaintiff allegedly fell (see Tucciarone v Windsor Owners Corp., 306 AD2d 162, 163 [1st Dept 2003]).

In opposition, plaintiff failed to raise a triable issue of fact. To the extent that her affidavit contradicted her prior testimony as to the defect, it was clearly tailored to avoid the consequences of her earlier testimony and was properly disregarded by the motion court (see e.g. Sutin v Manhattan & Bronx Surface Tr. Operating Auth., 54 AD3d 616 [1st Dept 2008]; see also Addo v Melnick, 61 AD3d 453 [1st Dept 2009]).

We have considered plaintiff‘s remaining contentions and find them unavailing. Concur—Gonzalez, P.J., Acosta, DeGrasse, Freedman and Richter, JJ.